Relist (and hold) watch

JOHN ELWOOD
OCT 30, 2012 10:44 AM

John Elwood reviews Monday’s relisted and held cases.

As the rest of Washington’s elite huddled at home yesterday in front of cable news and Three’s Company reruns, the Justices took the bench as usual, issuing orders and pointed oral argument hypotheticals over the howling gales. Proving again that neither snow nor rain nor Frankenstorm will stay your correspondent from his (self-appointed) rounds, here is this week’s edition, now with gale-force bloviation. Brace yourself, readers: Today’s installment is a real snor’easter.

Yesterday’s grants included a number of cases that will be familiar to both our regular readers. PPL Corporation v. Commissioner, 12-43, had been rescheduled from the October 3 Conference to be considered with the SG’s petition in Commissioner of Internal Revenue v. Entergy, 12-277. Apparently agreeing with the SG’s recommendation, the Court granted PPL and appears to be holding Entergy. The Court also granted cert. in Trevino v. Thaler, 11-10189, which, as we speculated, was being considered together with Balentine v. Thaler, 12-5906. (The Court now appears to be holding Balentine, and also possibly Washington v. Thaler, 11-10870, for Trevino, although Washingtonmight be a GVR for Martinez v. Ryan.) Not a grant but, statistically speaking, the next best thing: the Court CVSG’d in the once-relisted Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., 11-1507, which concerns a Fair Housing Act challenge to the redevelopment of a predominantly Hispanic and African-American neighborhood of Mount Holly, New Jersey, near Philadelphia.

Last week’s relists survived to fight another day. The attorneys-fee case from the Fourth Circuit, Lefemine, dba Columbia Christians for Life v. Wideman, 12-168, is now on its third relist. Lefemine asks whether a plaintiff who is awarded injunctive and declaratory relief but fails to obtain damages is a prevailing party (and thus gets attorney’s fees). A grant is not out of the question (see Comcast), but at this point, the odds start to favor one of the Justices preparing an opinion respecting (or dissenting from) the denial of cert. The Court relisted for a second time in Nitro-Lift Technologies, LLC v. Howard, 11-1377, which addresses whether a state court can avoid enforcing an otherwise-valid arbitration agreement when it determines the underlying contract is against public policy.

Turning to this week’s fresh meat, the Court relisted in three new cases. First, the Court relisted in Delling v. Idaho, 11-1515, which presents the interesting question whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases. (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner.) Personally, I think it’s the much-litigated Third Amendment, but that’s a minority view.

The Court also relisted in a pair of important Voting Rights Act cases, Nix v. Holder, 12-81, and Shelby County v. Holder, 12-96. Shelby County (the one near Birmingham, Alabama, rather than Memphis, Tennessee, or in Illinois, Indiana, Iowa, Missouri, Ohio, or Texas, for that matter) presents the question whether Congress’s decision in 2006 to reauthorize Section 5 of the Voting Rights Act exceeded its authority under the Fifteenth Amendment. The Court called for the record in Shelby County on October 26, and it arrived at One First Street yesterday; the Justices may need a bit more time to sort through potential factual issues. Nix presents a related constitutional challenge, overlaid with a mootness question relating to the Justice Department’s decision to “reconsider” and “withdraw” the particular preclearance objection at issue. (In a related story, supermarkets throughout the Washington metro area reported severe shortages in their supply of “sneer quotes.”)

The tropical depression brought in a massive hold front that may loiter in the area for weeks.

The Court appears to be holding Allshouse v. Pennsylvania, 11-1407, involving whether a child’s statements in an interview with a child protection agency worker about the suspicion of past abuse are “testimonial” for purposes of the Confrontation Clause. (Disclaimer: Goldstein & Russell, P.C., serves as co-counsel to the petitioner.) I’m told the Court might be planning to consider Allshouse with DeLeon v. United States, 12-6558, originally scheduled for the November 2 Conference – but the Court called for the SG’s response in DeLeon on October 25, which may put both cases off for some time yet.

The Court also appears to be holding Cooke v. United States, 11-10835, a Fourth Amendment case from the Fifth Circuit. The petition argues that lower court’s decision conflicts with the “curtilage” rule from United States v. Dunn (1987) and implicates a circuit split with the Ninth Circuit about whether an absent co-tenant’s prior refusal to consent to a search invalidates the consent given by a physically present co-tenant under Georgia v. Randolph. The SG opposes cert. and argues the Court should let things percolate, because the Ninth Circuit’s decision can be limited to its facts by a future panel or overruled en banc, and subsequent cases have sided with the Fifth Circuit’s view. It’s possible the Court is holding Cooke until briefing is complete in Shrader v. United States, 12-5614, in which the Fourth Circuit took the same view as the Fifth Circuit on the co-tenant consent question.

Although it’s hard to know, the Court may be holding Delgado v. United States, 12-5271, for yesterday’s grant in McQuiggin v. Perkins, 12-126; both appear to involve the “actual innocence” exception to procedural default in habeas cases. Finally, the Court appears to be holding Phillips v. Chappell, 12-5890. There, an apparently pro se petitioner, who received habeas relief from his death sentence in the Ninth Circuit but was denied relief on the underlying conviction, appears to be seeking further relief. We don’t yet have the papers, so it’s hard to know for sure, but the Court might be waiting for an expected state-on-top cross-petition in the same case to catch up; last month, the warden sought an extension of time to file a petition. (Given that Judges Stephen Reinhardt and Betty Fletcher rejected his remaining claims, I do not anticipate the Supreme Court granting him further relief.)

Finally, in more routine matters, RBS Citizens N.A. v. Ross, 12-165, seems like a hold for Comcast v. Behrend, 12-864, even though the petitioners argued their case presented a different but complementary issue. Larbie v. Larbie, 12-304, looks like a routine hold for Chafin v. Chafin, 11-1347, the case involving the Hague Convention on the Civil Aspects of International Child Abduction.

We are done, and none too soon—my whale-oil lamp is guttering. If the kraken that appears to have swum up my street doesn’t do me in, we’ll be back next week for an update that is every bit as scintillating as this one.

Thanks to Jeremy Marwell and Eric White for compiling and drafting this update, even though their power is out.

Lefemine, dba Columbia Christians for Life v. Wideman (relisted after the October 5, 12, and 26 Conferences)

Issue(s): (1) Did the Fourth Circuit err when it rejected the rule of Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources by holding that a plaintiff who has obtained a permanent injunction and declaratory relief on the merits of his claim has nonetheless not prevailed? (2) Did the Fourth Circuit err when it promulgated its new rule that the determination of whether a plaintiff has prevailed will now be subject to abuse of discretion review?

Issue(s): Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and forty-five years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).

Issue(s): (1) Whether the 2006 version of Section 5 of the Voting Rights Act of 1965 exceeds Congress’s enforcement powers under the Fourteenth and Fifteenth Amendments given that: (a) Congress retained a three-decade-old formula for selecting the jurisdictions that will be covered by the preclearance procedure; and (b) Congress significantly expanded the substantive standard for denying preclearance by abrogating two of the Court’s decisions that had narrowly construed it; (2) whether the Justice Department mooted petitioners’ appeal when it unilaterally purported to “reconsider” and “withdraw” the particular preclearance objection that was injuring petitioners, but failed to demonstrate that Section 5 could not reasonably be expected to injure petitioners in the future.

Issue(s): Whether Congress’s decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.